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BPA Call Competition Requirements

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Have a question on competition requirements for BPA calls. FAR 13.303-5©, states that the "existence of a BPA does not justify purchasing from only one source". In light of that language, what are the competition requirements for BPA calls that are issued against multiple awarded, priced BPAa that were synopsized in FedBizOpps? [bPA's synopsized in FBO, not calls]

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The term BPA used outside simplified acquisition procedures (FAR part 13) really only applies to GSA Schedule contracts. I'm not aware of any GWACS or other multiple award IDIQs or MACs where it is used.

Under GSA Schedules, you can make multiple award BPAs or a single BPA. Usually when multiple BPA awards are made, the agency competes the work among two or more BPA holders. The exact rules for ordering usually get established in the solicitation used for awarding the BPAs. With a single BPA, the agency just negotiates and places orders without further competition as long as the work falls under the scope of the BPA under which the competition was initially held.

Here are examples to help. An agency wants to have quick reaction ordering mechanism to support their IT/CIO function. They competitively award multiple BPAs for system design, development, O&M, and support. They might use experience, overall capabilities, and past performance to select the pool. As needs arise for specific work, they do a quick competition to select a BPA holder for that job. In once instance, the work might be for a functional design document. In another case, prepare an Exhibit 300. In still another case, perform IV&V of another contractors work.

Let's say another agency wants to replace an existing but old system. They do a competition and select a single company for a BPA award. The first order is negotiated for a high level functional design. The next order is for a detailed design specification. Another order follows for development and programming. System testing follows, and so on. Since the orders all fall within the scope of what was competed, the agency can continue to place orders with the single BPA holder for the work. However if the agency wanted to have the same contractor perform a security analysis of their financial system, that wouldn't be proper because it wasn't part of the overall BPA competition.

Does that help?

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Helps some, but I'd really like to know the competition requirements for multiple award BPAs (priced). Say you award 5 BPAs to 5 different vendors for charter helicopter services. Each of the 5 BPAs includes hourly rates for the service. Each was made from quotes received after you solicited the services on FedBizOpps. When you want to issue a call that is valued above the micropurchase threshold (say $10K), would you have to compete between all BPA holders or can you just select one of the BPA holders and issue the call?

FAR 13.303-5© makes me think competition from at least 3 of the BPA holders is required. But there's a different view that says since the BPA awards were made after soliciting on FedBizOpps, competition has already been obtainined and no further competition is required. You may non-competitively select any one of the 5 BPA holders and award a call.

Is competition necessary?

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Helps some, but I'd really like to know the competition requirements for multiple award BPAs (priced). Say you award 5 BPAs to 5 different vendors for charter helicopter services. Each of the 5 BPAs includes hourly rates for the service. Each was made from quotes received after you solicited the services on FedBizOpps. When you want to issue a call that is valued above the micropurchase threshold (say $10K), would you have to compete between all BPA holders or can you just select one of the BPA holders and issue the call?

FAR 13.303-5? makes me think competition from at least 3 of the BPA holders is required. But there's a different view that says since the BPA awards were made after soliciting on FedBizOpps, competition has already been obtainined and no further competition is required. You may non-competitively select any one of the 5 BPA holders and award a call.

Is competition necessary?

Isn't there anyone at your office who can answer this question? This is really very, very elementary. Isn't there anyone? Who runs your office? Do you have a boss? Can't the boss answer this question? Isn't there an old timer around who can answer?

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Vern...if I knew of someone in my agency to go to for an answer I sure as hell would go to them before coming here to get railed by you. However, because I don't know who to go to in my agency I thought I'd turn to WIFCON (my mistake). When its your agency's lead acquisition team that's responsible for establishing non-competitive processes under BPA over the micro-purchase threshold and other offices in your agency are mimicing the practice, you take notice. As for me, I've never handled BPA's and don't know much about them other than what's in my memory and what I read in the FAR. Because I seem to be the only one in my agency that recognizes that non-competitive calls are wrong I thought this might be the place to get some resassurance. Thanks for being so understanding.

Carl...thanks for the link to the Comp Gen case. That's what I was searching for. I guess my search parameters were off when I searched WIFCON and Google and DAU and other sources. Most of my hits only provided info on using BPA's on GSA schedule contracts.

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Sometimes, tough love is the best love.

BPAs have been around at least 40 years. A few decades ago, any GS 1105 05 would have known the purpose of a BPA and the procedures one used to place calls against BPAs. There seems to be correlations between the "professionalization" of the 1102 workforce, the disappearnace of 1105s, the arrival of "automated procurement systems? and the lack of knowledge of procurement fundamentals seen today. The responsibility for recognizing the disappearance and for taking corrective steps rests with the supervisors and managers of each procurement organization. This puts squarely on the non-supervisory 1102s, the responsibility for researching the FAR to learn the rules and procedures.

BTW, the rules for using BPAs are set out in FAR 13.303-5 -- Purchases Under BPAs.

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Sometimes, tough love is the best love.

BPAs have been around at least 40 years. A few decades ago, any GS 1105 05 would have known the purpose of a BPA and the procedures one used to place calls against BPAs. There seems to be correlations between the "professionalization" of the 1102 workforce, the disappearnace of 1105s, the arrival of "automated procurement systems” and the lack of knowledge of procurement fundamentals seen today. The responsibility for recognizing the disappearance and for taking corrective steps rests with the supervisors and managers of each procurement organization. This puts squarely on the non-supervisory 1102s, the responsibility for researching the FAR to learn the rules and procedures.

BTW, the rules for using BPAs are set out in FAR 13.303-5 -- Purchases Under BPAs.

Just curious. Since cost, such as fuel, and rates see, to change, would you want to fix them in a BPA? Wouldn't you want to compete something like helicopter services on a call basis? What do you compete among equal prices, for instance - availability?

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In my experience, BPAs can be unpriced collections of terms and conditions only. Or, they can include items of supplies and services to be priced during competitions among the BPA holders. The extent of the detail is a function of the market covered by your BPA.

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Carl...thanks for the link to the Comp Gen case. That's what I was searching for. I guess my search parameters were off when I searched WIFCON and Google and DAU and other sources. Most of my hits only provided info on using BPA's on GSA schedule contracts.

For everyone who doesn't know about this already, wifcon has a page that lists important protest decisions by FAR part. See here: http://www.wifcon.com/pdbyfar.htm.

Big THANKS to Bob for making this a feature of wifcon... I use it all the time.

-

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Oh, for Pete's sake:

Here are the rules. First, there are different rules for BPA's entered into pursuant to FAR Part 13 and BPAs entered into under Federal Supply Schedule contracts.

BPAs Under Part 13.

When a BPA is issued under FAR Part 13, calls against the BPA valued in excess of the micropurchase threshold are subject to the rules in FAR 13.104, esp. paragraph (d), and 13.106. See 13.303-5( c). Generally, that means that you should get three quotes for all calls at or below $25,000. If a call will be for $25,000 or less and you have enough BPAs to obtain three quotes from BPA-holders, you can seek quotes from them exclusively. If the call will exceed $25,000, then you must synopsize and consider all quotes or offers received prior to award. In short, the existence of a Part 13 BPA does not eliminate the need for competition for calls in excess of the micropurchase threshold.

Part 13 does contemplate the issuance of multiple, competitively-awarded, priced BPAs, and does not prohibit them. You can make an argument that if you establish such BPAs you need not get new competition before placing calls. On the other hand, you can make an argument that you must obtain competition among BPA holders before placing orders. There are no published rules. A lot would depend on what you told the competitors about ordering procedures. (Why would you award multiple BPAs if you were not going to get competition among them before placing orders?)

BPAs Under FSS Contracts.

Although these are called BPAs, they are not subject to the rules in Part 13. They are subject to the rules in Subpart 8.4.

When a single BPA is issued against a Federal Supply Schedule contract using the procedures in FAR 8.405-1 and 8.405-2, you need not get competition before placing an order against the BPA.

When multiple BPA's are issued using the procedures in FAR 8.405-1 and 8.405-2, you must obtain quotes from all BPA holders prior to placing an order.

For more information about placing orders against BPA's issued under FSS contracts, go to http://www.gsa.gov/Portal/gsa/ep/contentVi...contentId=21078.

This information is available to anyone willing to do an hour's worth of research in the FAR and at the GSA website. You don't need to look up any case law. All you need to do is read the FAR and do a little thinking.

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FAR Part 13 BPAs can be priced or unpriced. The prices are not binding on either party.

Remember that a Part 13 BPA is nothing but a charge account. It is not a contract.

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You can make an argument that if you establish such BPAs you need not get new competition before placing calls.

If one were to make such an argument, which exception to the synopsis requirement would they cite if the call were to exceed $25,000?

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Guest carl r culham

Don - Did you read the second GAO decision that I referenced which states in digest the following? No exception necessary in my book if the standard that GAO notes is met.

"Statutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs."

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carl,

No, I hadn't read the decision and I didn't know about it--thanks.

However, a purchase order is a contract action as defined by FAR 5.001 and, as such, must be synopsized if it is expected to exceed $25,000 unless an exception applies (FAR 5.201( b )). I don't see an exception that would apply to a purchase order issued under a BPA.

If the action were a task or delivery order under an IDIQ contract, it would be excepted by FAR 5.202(a)(11), which states:

(11) The proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of 5.207 with respect to the current proposed contract action;

[italics added].

However, we all know that a FAR Part 13 BPA is not a contract.

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If one were to make such an argument, which exception to the synopsis requirement would they cite if the call were to exceed $25,000?

Don,

I don't believe Vern was saying synopsizing can be avoided . He did say:

If the call will exceed $25,000, then you must synopsize and consider all quotes or offers received prior to award

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Actually, what I said was:

You can make an argument that if you establish such BPAs you need not get new competition before placing calls. On the other hand, you can make an argument that you must obtain competition among BPA holders before placing orders. There are no published rules.

FAR does not contemplate the competitive award of priced BPAs. FAR contemplates getting competition prior to placing a call (order) against a BPA.

In the last case cited by Carl, Logan, LLC, Comp. Gen. Dec. B-294974.6 (2006), the agency solicited quotes for priced BPAs and entered into multiple priced BPAs. GAO said that procedure satisfied the FAR Part 13 requirement for maximum practicable competition and that the agency did not have to obtain competition among the BPA holders prior to issuing a purchase order against one of the BPAs.

In this case, DEA complied with the statutory requirement to obtain maximum practicable competition when it established the BPAs for these small purchases. Under these circumstances, there is no requirement that DEA compete among the BPA holders each individual purchase order subsequently issued under the BPAs.

However, in a somewhat worrisome footnote to the first sentence, GAO said:

To the extent Envirosolve argues that DEA did not achieve competition to the maximum extent practicable by competing the establishment of the BPAs (and thus must compete issuance of the purchase orders under the BPAs), this argument is untimely. Our Bid Protest Regulations require that protests based upon alleged improprieties which do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be filed no later than the next closing time for receipt of proposals following the incorporation. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006). Envirosolve was aware from at least March 29, 2005 (the date that Amendment 3 to RFQ No. DEA-05-R-0003 was issued) that DEA did not plan to compete the issuance of the actual purchase orders after competitively establishing BPAs with one or more sources of supply, yet did not protest this issue to our Office until August 24, 2006.

GAO did not discuss the issue in depth. It said that BPAs are not contracts, but it said nothing about whether, that being the case, issuing a BPA constituted a "contract action" as defined by FAR Part 5. The footnote makes it seem like the issue is open to debate.

Why issue a priced BPA instead of an IDIQ contract? Because, since it's not a contract, you don't need consideration, which means you don't need a minimum.

When you think about it, it's brilliant, and GAO doesn't seem to have a problem with it.

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I'd like to add something during this "teachable moment." Several persons in this thread and the GAO in the decisions cited by Carl mention the issuance of "purchase orders" against BPAs. Purchases against FAR Part 13 BPAs are supposed to be made orally or electronically as much as possbile. See FAR 13.303-5(e)(1). Although a "paper document" may be issued, it is not suppose to be a purchase order as described in FAR 13.303-2. Issuing purchase orders against a BPA would defeat the purpose of the BPA, which is to avoid the issuance of purchase orders. See FAR 13.303-2(a)(3). Traditionally, purchases against Part 13 BPAs have been referred to as "calls," for the very reason that most orders were made by telephone. See, e.g., Dept. of Homeland Security, U.S. Coast Guard, Simplified Acquisition Procedures Handbook, COMDTINST M-4200.13G, p. 7-17 et. seq. http://www.uscg.mil/directives/cim/4000-49...IM_4200_13G.pdf The calls are logged and the log is used to verify delivery tickets and invoices for monthly payment to the contractor.

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I'd like to add something during this "teachable moment." Several persons in this thread and the GAO in the decisions cited by Carl mention the issuance of "purchase orders" against BPAs. Purchases against FAR Part 13 BPAs are supposed to be made orally or electronically as much as possbile. See FAR 13.303-5(e)(1). Although a "paper document" may be issued, it is not suppose to be a purchase order as described in FAR 13.303-2. Issuing purchase orders against a BPA would defeat the purpose of the BPA, which is to avoid the issuance of purchase orders. See FAR 13.303-2(a)(3). Traditionally, purchases against Part 13 BPAs have been referred to as "calls," for the very reason that most orders were made by telephone. See, e.g., Dept. of Homeland Security, U.S. Coast Guard, Simplified Acquisition Procedures Handbook, COMDTINST M-4200.13G, p. 7-17 et. seq. http://www.uscg.mil/directives/cim/4000-49...IM_4200_13G.pdf The calls are logged and the log is used to verify delivery tickets and invoices for monthly payment to the contractor.

Vern, I'm not sure that many agency's procurement systems would allow CO's not to issue purchase orders (I don't believe ours could). That doesn't mean its right to issue POs as opposed to paying monthly vouchers for deliveries, but just like so often with procurement software, the tail wags the dog.

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Actually the procurement systems in use at most agencies do allow for BPA calls without issusing purchase orders. In practice, some agencies just aren't aware of it or decided to not utilize it.

For example, purchase card holders often access the BPA call screen when they input their statement. Each charge gets loaded as a call. They may not know that's what they do but it is. Utility bills often get done the same way although it may be a non-procurement person that's doing it.

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Vern, I'm not sure that many agency's procurement systems would allow CO's not to issue purchase orders (I don't believe ours could). That doesn't mean its right to issue POs as opposed to paying monthly vouchers for deliveries, but just like so often with procurement software, the tail wags the dog.

I'm sure you're right, which is why I dispute the claims that the contracting workforce is overworked. While they can certainly use help, they could help themselves by using the simplified procedures available to them. But they don't. Contracting software is a big culprit in this.

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I work for a small agency and our current contracting staff have not established a BPA using Part 13 procedures. Thanks to Vern Edwards for the explanation of the basic rules in your October 2009 entry.

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